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Judgment
K.M. Natarajan, J.—These two writ petitions are filed by the concerned detenus under Article 226 of the Constitution of India seeking for
the issuance of the writs of Habeas Corpus quashing the orders of detention dated 23-10-90 and set them at liberty. Since both the detention
orders were passed on the same ground case, both the petitions were clubbed together and disposed of by a common order by consent of both
parties. On 23-10-90 the impugned orders of detention were passed by the first Respondent in exercise of the powers u/s 3(1) of the
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Act 52 of 1974), (hereinafter referred to as the Act,) with a
view to preventing them from smuggling goods. It is to be noted that though the writ petitions were originally against two Respondents, including
the Union of India, represented by Secretary to Government, Ministry of Finance. Department of Revenue, New Delhi, the learned Counsel for the
Petitioners did not press the petitions in so far as the second Respondent is concerned and he confined the relief only against the first Respondent,
the Detaining Authority.
The facts which led to the passing of the impugned orders be briefly stated as follows: On 3rd July, 1990, these detenus and 8 others were
found roaming near Reveas Jetty, all drenched in water. They were questioned and apprehended by the Asst. Port Supervisor, Revas Jetty, with
the help of police constables. Later, they were taken to the Division office of Customs, Alibag. After the Inspector of Customs (Preventive),
Mandwa port was being informed, the interrogation of the detenus and their companions revealed that all of them were crew members of one
vessel, A-I-Haj and they sailed from Doha Port in Dubai, with 150 silver ingots, weighing around 33 kgs. each, for the sole purpose of smuggling
the immense quantity of silver ingots to India and that the vessel developed leakage before they could reach their destination and it sank in the sea
with the silver ingots. It also revealed that they managed to reach the nearest sea shore where they were rescued by a fishing vessel which dropped
them at Mandwa Port in the early hours of 3rd July, 1990. Thereafter they walked to Revas in the hope, of catching a Bombay going vessel and
they were apprehended at the place. The statements of these detenus and their 8 companions were recorded u/s 108 of the Customs Act. They
were arrested on 6-7-90. The Second Addl. Judge, Raigad, Aliba, passed an order of release of them on bail on 1-8-90 on their executing a P.R.
Bond for Rs. 4000/- each with a solvent surety in the like amount, subject to further conditions that they should attend the customs custody daily till
the investigation is over. The customs challenged the bail order in the High Court of Bombay, and the High Court passed an order on 11-9-90 to
the effect that since the complaints are not filed within 60 days as per Section 167(2) Cr.P.C, the relief has become infructuous. However, the
accused/detenus were directed not to leave Raigad District without the permissions of the magistrate. Hence; they continued to be on bail. It is only
in these circumstances, after observing all the formalities, the impugned orders of detention were passed. The detenus in these two cases were
served with the orders on 7-1-91 while they were in custody of the Central Prison, Tiruchi. Thereafter they were continued to be kept there in
execution of the orders. The detenus in both the petitions challenged the impugned orders before this Court on various grounds.
Notices which were ordered in both the petitions on 27-2-1992 were taken to the first Respondent and they were served on the first
Respondent on 26-3-1992 at 11.15 A.M. through Court. Subsequently also, notice was ordered by a Bench of this Court on 7-4-92 for the
hearing on 16-4-92 through express wire as well as by registered post. The first Respondent was also served personally and the
acknowledgements have been produced along with the affidavits of service. Yet the first Respondent did not choose to appear in court till the
matter was taken up for the hearing on 8-7-92 though they were posted in the list number of times. It may be pointed out that under the proviso to
order VII R.1 of the Rules of the High Court, Madras Appellate. Side, 1965, the service of notice privately by registered post prepaid for
acknowledgement and the filing into court of the acknowledgement purporting to be signed by the Respondent of such service of notice, together
with an affidavit of such service, shall be deemed to be sufficient proof of service of such notice. Hence, we propose to hear the learned Counsel
for the 3 Petitioners on the available materials, on merits, and decide these two petitions.
First we raised a question with regard to the maintainability of the petitions before this Court, since the impugned orders were passed by the first
Respondent in respect of an incident which took place within the jurisdiction of the High Court of Judicature, Bombay. We directed the learned
Addl. Public Prosecutor Mr. I. Subramaniam, to assist the court on the question of maintainability of the petitions.
The learned Counsel appearing for the Petitioners drew our attention to Cl.(2) of Article 226 of the Constitution of India which provides that the
power conferred by Cl.(1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court
exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power,
notwithstanding that the seat of such Government or authority or the residence of such persons is not within those territories. The learned Counsel
submitted that since part of the cause of action arose within the jurisdiction of this Court, this Court can certainly exercise the jurisdiction to issue
writs in the nature of Habeas corpus etc.. He would submit that the two causes of action arose within the jurisdiction of this Court, namely, the
service of the orders of detention was made at the Central Prison, Tiruchi where the detenus were undergoing imprisonment and subsequently the
orders of detenus were implemented only within the jurisdiction of this Court by directing the detention of the detenus in execution of the impugned
orders. The learned Counsel invited our attention to the decision of a Division Bench of this Court in P. Subramani Vs. State of Karnataka and
Others, That was a case where the impugned order of detention was passed by the Home Secretary, Karnataka State and the writ petition was
filed before this Court. It was contended that the seizure was effected in Karnataka that the Karnataka Government has passed the impugned
order and the Karnataka High Court alone should have the jurisdiction and the fact that the order was served upon the Petitioner within the
jurisdiction of this Court would be of no consequence. The Bench repelled the said argument and held;
In this case, not only the order was served upon the detenu in Salem in Tamil Nadu, his liberty was deprived in the same place and the grounds of
detention were also served on him at the sample place. Therefore, the essential act of detention physically happened in Tamil Nadu as far as the
Petitioner is concerned and, therefore, a considerable part of the cause of action took place in the State of Tamil Nadu, conferring jurisdiction
upon this Court.
The learned Counsel for the Petitioner then cited the decision in Ishwarlal Hiralal Gunderia Vs. Union of India and others, . That was a case where
the alleged objectionable activities took place at Cochin and Delhi. The detention order was passed by the Joint Secretary to the Government of
India, Ministry of Finance, Department of Revenue, New Delhi, and as such, the Detaining Authority has the seat in New Delhi. However, the
detenu is a permanent resident of Bombay and the detenu was detained at Bombay. A preliminary objection was raised regarding the
maintainability of the petition in Nagpur Bench of High Court. The Bench of the said Court observed as follows:
What is ''cause of action''? The expression is neither defined by the CPC nor by the contention, but its meaning has been judicially considered
in various decisions. The following definition given in Cook v. Gill, (1973) L.R. 8 C.P.107. is the most accepted and widely acclaimed:
Every fact which it would be necessary for the Plaintiff to prove, if traversed, in order to support his right to the judgment of the Court.
Thus, the cause of action would differ from case to case and enactment to enactment. Is the place of residence of a close relative of a
COFEPOSA detenu by itself a cause of action in the matter of challenge to the order of detention by a writ petition under Article 226. We do not
think so. That would be taken far fetched. However, there can be no doubt about the place of detention providing a cause of action. That place in
the instant case is Bombay and hence, High Court of Bombay will have jurisdiction to entertain this petition.
It is clear from the above decision that the place of detention in this case provides a cause of action to file a writ petition within the jurisdiction of
this Court.
The learned Addl. Public Prosecutor, Mr. I. Subramaniam agreed with the contention of the learned Counsel for the Petitioners. He would
submit that in view of the decision of this Court in P. Subramani v. State of Kamataka (1990 Crl. L.J.1106) this Court is having jurisdiction to
entertain these petitions, even though the orders of detention were passed by the first Respondent who had seat at Bombay within the jurisdiction
of the High Court of Judicature, Bombay, and the objectionable activities took place in that jurisdiction, since the place where the order of
detention was served lies within the jurisdiction of this Court. Namely, at Tiruchi, and even to-day the detenus are detained in the Central Prison,
Tiruchy which provides the cause of action. The learned Counsel for the Petitioner drew the attention of this Court that in W.P. No. 10446/91
which was disposed of on 11-12-91, the order of detention was passed by the Kerala Government and since the detention order was served on
the detenu within the jurisdiction of this Court, the writ petition was entertained and it was disposed of on merits. We are entirely in agreement with
the view taken by this Court and the Bombay High Court in decisions cited above, and applying the ratio in the said decisions to the facts of this
case, we have no hesitation that this Court is having jurisdiction to entertain these writ petitions and as such the writ petitions are maintainable
before this Court.
Next we have to consider the relief prayed for in these writ petitions, namely, whether the Petitioners are entitled to the issuance of writs of
Habeas corpus quashing the orders of detention passed against them. The learned Counsel for the Petitioners drew our attention to various
contentions raised in the writ petitions and submitted that since the first Respondent did not appear and did not file counter, the writ petitions are to
be allowed on the sole ground of non-appearance. He also took us through the relevant and main grounds and advanced his arguments. We will
consider the same in seriatim.
As regards the contention of the learned Counsel that the first Respondent though served with notice has not chosen to appear and did not
repudiate the averments stated in the affidavits filed in support of the petitions and no counter has been filed, the allegations has to be taken as
correct and proved and the detention has therefore become unconstitutional as the challenge in regard to violation of Article 22 of the Constitution
is not countered. In this connection, he drew the attention of this Court in two decisions of the apex court reported in Mohd. Ibrahim Mohd. Sasin
v. State of Maharashtra (1987 SCC Crl.630). That was a case where the earlier detention order was revoked on the basis of the report of the
Advisory Board. Immediately after the said revocation, the impugned order was passed. The Petitioner challenged the said second order of
detention. Even though two adjournments were given to enable the State Government to defend the action, it was not availed of. In the
circumstances, their Lordships felt that further detention of the Petitioner in that case is unconstitutional and the Respondent, State of Maharashtra,
was directed to release the detenu forthwith. Yet another decision relied on the by the learned Counsel for the Petitioners is Ranbir Singh v.T.
George Joseph (1990 S.C.C. (Crl.) 613) wherein the detenu challenged the impugned order of detention on the ground that he made a
representation to the State Government and the State Government failed to consider the same. The Central Government as well as the State
Government disdained from filing any counter-affidavit and the said allegation remained uncontroverted. It was held:
In the premises, due to the failure of the State Government to consider the representation made by the Petitioner, his continued detention is illegal
and constitutionally impermissible.
Ultimately the writ Petitioner in that case was directed to be set at liberty forthwith. In the instant case also the Petitioners challenged the impugned
orders of detention on various Grounds and particularly contending that there is violation of Article 22 of the Constitution of India and those
averments remain uncontroverted since the Maharashtra Government did not choose to enter appearance and file any counter-affidavit. The ratio
laid down in those decisions in our view is in all fours applicable to the facts of the instant case and on that ground also, it can be safely held that
the continued detention of the Petitioners is unconstitutional and illegal.
However, we also propose to consider certain contentions with regard to the challenge of the impugned orders. In ground No. 11 it is
contended;
It is apparent that certain factual aspects have been noted in the grounds that it is not supported by any material annexed to the grounds. How can
the Detaining Authority know about the order passed by the High Court of Bombay, the application for cancellation of bail and there is no order of
the High Court supplied along with the grounds of detention. If the Detaining Authority has relied upon certain facts or documents, then the said
document should have been supplied par(sic) pasu along with the grounds. Thus looking from any point of view the detention order is
unsustainable.
The learned Counsel for the Petitioner submitted that ex facie the impugned orders are unsustainable as they violate two settled principles. First it
was contended that where a person has been released on bail, the bail order must be perused and a copy of the bail order also must be supplied to
the detenu and in support of that contention, he relied on the decision Abdul Sathar Ibrahim v. Union of India (1991 Crl.L J. 3291). The learned
Counsel submitted that the second principle is where a document is specifically referred to and relied upon, then the copy of the same must be
supplied along with the grounds. According to him, the grounds refer to the order of the High I Court and the fact that the detenu availed bail. But
no document was supplied to the detenu along with the grounds. This would infringe the aspect. The documents referred to and relied upon have to
be supplied along with the grounds. Otherwise it will vitiate Article 22(5) read with Section 3(iii) of the COFEPOSA Act the learned Counsel
produced before us the entire papers served on the detenus and submitted that the order of the Bombay High Court which is very much relied on
with regard to the release of the Petitioners on bail on conditions imposed., were not supplied to the detenus till this date and on that ground alone
the orders are vitiated. The grounds of detention refer to the order of the Bombay High Court, on the petition filed by the customs to cancel the
bail, which shows that the detenus are directed not to leave Raigad District without the permission of the Magistrate and the challenge made to the
bail order in the High Court ended in favour of the detenus. A copy of the order of the High Court had not been furnished to the detenu. In this
connection, it is worthwhile to quote the latest decision of the apex court in Abdul Sathar Ibrahim v. Union of India (1991 Crl.L.J.3291) wherein
the apex court considered the question elaborately and held;.
In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to
necessarily rely upon them as that would be a vital ground for ordering detention. In such a case the bail application and the order granting bail
should necessarily be placed before the authority and the copies should also be supplied to the detenu.
It is clear from the above ratio that the failure to produce the copies of the bail application and bail order before the authority and the failure to
supply them to the detenu would vitiate the order of detention. A reference has been made to the order passed by the High Court, Bombay. On a
petition filed by the customs department challenging the grant of bail, in the grounds of detention. The Bombay High Court upheld the order of
release on bail and imposed conditions on the detenu. The fact that the detenu availed bail is mentioned in the grounds of detention. But a copy of
the order has not been furnished to the detenus. In M. Ahamedkutty Vs. Union of India (UOI) and Another, ) it was held that the non-
consideration of the bail application and the bail order by the detaining authority or the non-supply of the copies thereof to the detenu would be
violative of Article 22(5) of the Constitution and the continue detention would be illegal. It has been further held:
The detenu has the right to be furnished with the grounds of detention along with the documents relied on. If there is failure or even delay in
furnishing those documents, it would amount to denial of the right to make an effective representation guaranteed under Article 22(5). It is
immaterial whether the detenu already knew about their contents or not. The question of demanding the documents is also wholly irrelevant and the
infirmity in that regard is violalive of Article 22(5).
Applying the ratio laid down in the above quoted case, we have no hesitation in holding that tne impugned orders are vitiated on this ground also.
Next, it was contended by the learned counsel for the Petitioners that the detention orders have been made by the specially empowered
officer, namely, L. Hminghana. He has been specifically expowered u/s 3(1) to pass the detention order. But, the detention order nowhere states
that the detenu has a right of representation to the detaining authority also. It is absolutely essential to apprise the detenu of his right to make such
representation and that the failure to do so would vitiate the order. In this connection, the learned Counsel drew the attention of this Court to the
grounds of detention wherein it is only stated that the detenu has got a right to make representation to the State Government as well as the Central
Government against the impugned order of detention. But it is nowhere stated that he is entitled to make a representation to the detaining authority
against the impugned order for revocation. In this connection, the learned Counsel drew the attention of this Court to the decision of the Bombay
High Court reported in E.K. Ausapa v. Capoor and Ors. (1988 (2) Cri 567) wherein it was held:
Non-communication to the detenu of his right to make a representation into the Detaining Authority is fatal to the order of preventive detention
unless-it is demonstrated that the detenu was aware of his right or had in fact exercised his right, effectively.
The said ratio is applicable to the facts of this case and on that ground also, the impugned orders are liable to be quashed.
Next, it was contended by the learned Counsel that the detention orders have been passed mechanically and in this connection he drew the
attention of this Court to the averments in paras 6 and 7 of the affidavit. It is pointed out that from each of the ten persons statements have been
recorded on 6-7-90. But the detention order does not even refer to the same. Except laconically stating that the statements of the detenus and
others were also taken into consideration, there is no formulation in the grounds of detention about the statements. Without formulation of what the
statements contain and what the detaining authority has perceived from the Statements, it cannot be said that there has been a formulation of
grounds. It is this formulation of ground alone that would show the application of mind and it is essential to be communicated to the detenu in
furtherance to the obligation under Article 22(5) of the Constitution. The detenu could never satisfactorily reply to mere averment in the grounds
that statement of 8 persons have been taken into consideration along with that of the detenu. Thus, there is non-application of mind on the part of
the detaining authority and that the order is vitiated on the ground of failure to formulate the statements in the grounds of detention while arriving at
the subjective satisfaction. In this connection, the learned Counsel drew the attention of this Court to the decision reported in Smt. Shalini Soni and
Others Vs. Union of India (UOI) and Others, wherein it is held:
The Constitution and the statute cast a duty on the detaining authority to communicate the grounds of detention to the detenu. Therefore the
grounds communicated to the detenu must reveal the whole of the factual material considered by the detaining authority and not merely the
inference of fact arrived at by the detaining authority; secondly, an opportunity to make a representation against the order of detention
contemplated by Article 22(5) necessarily implies that the detenu is informed of all that has been taken into account against him in arriving at the
decision to detain him. It means that the detenu is to be informed not merely of the inference of fact but of all the factual materials which have led to
the inference of fact. If the detenu is not to be so informed the opportunity so solemnly guaranteed by the Constitution becomes reduced to an
exercise in futility.
It is further held:
Whatever angle from which the question is looked at, it is clear that ''grounds'' in Article 22(5) do not mean mere factual inferences ''but mean
factual inferences'' plus factual material which led to such factual inferences. The ''grounds'' must be self sufficient and self-explanatory.
It is further held:
Communication of the grounds presupposes the formulation of the grounds requires and ensures the application of the mind of the detaining
authority to the facts and materials before it, that is to say to pertinent and proximate matters in regard to each individual case and excludes the
elements of arbitrariness and automatism if one may be permitted to use the word to describe a mechanical reaction without a conscious
application of the mind.
On a careful reading of the above decision, we find much force in the contention of the learned Counsel for the Petitioners that the detention orders
have been made mechanically. On this ground also, the impugned orders are vitiated. Thus, in view of our findings on the above points in favour of
the Petitioners, the continued detention of the Petitioners is illegal as their detention is violative of Article 22(5) of the Constitution of India.
In the result, both the writ petitions are allowed, the impugned orders of detention passed against the Petitioners are hereby quashed and the
Petitioners are directed to be set at liberty forthwith unless they are required in connection with any other cause. Before parting with the case, we
wish to express a deep appreciation for the valuable assistance rendered by Mr. I. Subramaniam, Addl. Public Prosecutor in deciding the question
of maintainability of the petition.